Tribunals and PIP transfer errors

Issue 265 (August 2018)

Ed Pybus looks at recent caselaw on how tribunals should treat disability living allowance (DLA) evidence on transfer to personal independence allowance (PIP).

Introduction

A number of recent Upper Tribunal decisions have been concerned with First-tier Tribunal’s use of evidence and reasoning when looking at appeals concerning transfers from DLA to PIP, and the use of the evidence behind the DLA award.

Good practice

It has been established in AP v SSWP [2016] UKUT 416 (AAC) that it would be ‘good practice’ for the Secretary of State for Work and Pensions (SSWP) to provide the First-tier Tribunal with details of the claimant’s most re- cent DLA award and the evidence that was used to make that award. In GD v SSWP [2017] UKUT 415 (AAC), Judge Markus considered a case where the First-tier Tribunal was aware of the DLA award but had not been provided with the related evidence. The judge concludes that a tribunal should at least consider asking the SSWP for the evidence thatwas usedwhen de- ciding a previous DLA award – in this case the failure to do so resulted in an error of law.

This was further explored in AW v SSWP [2018] UKUT 76 (AAC). The DWP had failed to provide the evidence that had been used to make the claimant’s DLA award. The First-tier Tribunal made an error in law by failing to address whether or not it should have requested this evidence. As Judge Wright said: ‘a tribunal that proceeds without reference to the evidence behind the previous DLA award may – but will not necessarily – err in law’.

In MA v SSWP [2017] UKUT 351 (AAC), Judge Gray notes that failure to adjourn for further medical evidence, including previous evidence related to a DLA or employment and support allowance (ESA) claim, will not always be an error in law but may be ‘if it is legally illogical and insufficiently explained’. Judge Gray is of the opinion that the views expressed in AP about DLA evidence should also apply to any ESA evidence that the SSWP holds.

The DWP’s submission in GD makes it clear that when a claimant is being transferred from DLA to PIP s/he should be asked if s/he wants the evidence used to make the DLA decision included in the evidence used to make a decision about PIP entitlement. If s/he does, the DLA evidence should be included in the appeal bundle.1 CPAG is awaiting judgment in two linked cases where the claimants requested the DWP to use DLA evidence, but this evidence was not included in the appeal bundles. The case may address that point. Advisers should be aware that, if the claimant has not been asked, s/he can request that the DWP looks at the DLA evidence when considering the PIP claim. Even if the claimant has not request DLA evidence to be used, there may still be a duty on the First-tier Tribunal to request this evidence, or explain why this evidence was not requested.

Variation in the treatment of facts

In a number of cases2 it was found that the First-tier Tribunal made an error in law because it failed to explain why, when a claimant was transferred from DLA to PIP, her/his award was reduced. It has been established in R(M) 1/96 that a tribunal has a duty to explain to a claimant why an award is lower if a previous decision has been superseded – failure to do so can result in an error in law.

In BB v SSWP [2017] UKUT 506 (AAC), Judge Hemmingway makes it clear the need for the First-tier Tribunal to explain the reasons for a new PIP claim being lower than a previous PIP claim in the same way that it would be expect to explain why a supersession decision resulted in a lower award of benefit. In this case, the new award started the day after a pervious award ended. Depending on the circumstances this could potentially apply if there was a longer gap between awards.

In YW v SSWP [2018] UKUT 16 (ACC), the SSWP argued that R(M) 1/96 did not apply to cases where a claimant transfers from DLA to PIP. This argument was dismissed by Judge Ward. While he does note that just because a claimant was award DLA a failure to award PIP will necessarily mean an inconsistency, but the First-tier Tribunal is required to analysis the ‘potential for a genuine inconsistency’ between the awards, and explain any inconsistency.

Judge Ward goes on to discuss a number of potential overlaps between DLA and PIP (paras 130–20). For example, while noting that there may be a ‘variety of subtle nuances around such matters’, he draws a potential correlation between the higher rate mobility component of DLA and PIP mobility descriptor 2c. As well as the mobility component, he suggests that, in this case, there may be a correlation between middle rate care component of DLA and, with reference to MH v SSWP [2016] UKUT 531 (AAC), the ability to undertake PIP daily living activities ‘safely’. He is clear that, while these illustrative examples may be useful for advisers, it is not an attempt to provide a definitive list.

Advisers should be aware that the specific point of law is that ‘where the condition on which a previous award of a different benefit was made are reasonably capable ofbeing material to whether the conditions for the award of a subsequent benefit are met, where there is an apparently divergent decision on the subsequent benefit, R(M) 1/96 should be applied’. This could potentially apply in other situations.

Conclusion

These cases highlight that:

DLA evidence may be relevant to a PIP decision and the DWP should ask claimants if they want it used.

Tribunals may have made an error if they fail to consider requesting DLA evidence if it has not been included in the appeal papers.

A claimant should be given an explanation as to why a PIP award is lower than a previous DLA award, particularly where there is a correlation between the reasons the DLA was awarded and the PIP activities.

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